In re S.L.S. CA6

Filed 8/31/23 In re S.L.S. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re S.L.S., a Person Coming Under the H050182
Juvenile Court Law. (Santa Clara County
Super. Ct. No. 20JV44202E)
THE PEOPLE,
Plaintiff and Respondent,
v.
S.L.S.,
Defendant and Appellant.
After a contested jurisdictional hearing, the juvenile court sustained allegations in
the delinquency petition that the minor S.L.S. committed acts that would constitute
second degree robbery and grand theft if committed by an adult. At the disposition
hearing, the court ordered that S.L.S. continue as a ward of the court and committed him
to the Enhanced Ranch Program with various conditions of probation.
S.L.S. raises three claims on appeal. First, he contends the evidence was
insufficient to sustain the robbery allegation. He argues that because the wardship
petition identified a business as the victim of the robbery, the prosecution could not prove
the victim experienced the required element of fear. For the reasons below, we conclude
this claim is without merit.
Second, S.L.S. contends the grand theft finding must be set aside because grand
theft is a lesser included offense of second degree robbery. Third, S.L.S. contends a
condition authorizing the probation officer to place him out of his home to “meet family
crises” is unconstitutionally vague. The Attorney General concedes these latter two
claims, and we accept the concessions.
Accordingly, we will reverse the order sustaining the grand theft allegation and
remand the matter to the juvenile court to modify or delete the challenged probation
condition. We will affirm the judgment in all other aspects.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The wardship petition alleged S.L.S. committed acts that, if committed by an
adult, would constitute four offenses: count 1—second degree robbery (Pen. Code,
§ 211)1; count 2—grand theft (§ 487, subd. (a)); count 3—buying or receiving stolen
property (§ 496, subd. (a)); and count 4—resisting, delaying, or obstructing a peace
officer (§ 148, subd. (a)(1)).
After a contested jurisdictional hearing, the juvenile court sustained the violations
alleged in counts 1 and 2. The court dismissed count 3 as “duplicative” and granted the
prosecution’s motion to dismiss count 4.
At the dispositional hearing, the court continued S.L.S. as a ward of the court and
committed him to the Santa Clara County Enhanced Ranch Program for six to eight
months. Among other probation conditions, the juvenile court authorized the assigned
probation officer to “to place [S.L.S.] out of home from time to time to meet family
crises.”
S.L.S. timely appealed.
B. Facts of the Offenses
In March 2022, Andrew Krebs and Thomas Borello were working as employees at
Mike’s Cameras. S.L.S. and another male entered the store wearing hoodies and surgical
masks. When Krebs went to the back of the store, S.L.S.’s accomplice went behind the
1
Subsequent undesignated statutory references are to the Penal Code.
2
counter and directed S.L.S. to “[m]ake a move” and go over the counter to steal the
cameras. In response, S.L.S. moved across the counter and began to place cameras into
his bag. Borello testified that “at that point, we knew we were being robbed.” When
Krebs returned to the front of the store, he felt “very stressed” because he was “seeing
somebody taking cameras from the display” and instructed the two individuals to “stop.”
When S.L.S.’s accomplice brandished a gun, Krebs backed away and called 911
from the rear of the store. Borello also saw the weapon and testified that he “did not have
any feelings. I felt like I was watching a movie or something. I didn’t feel fear. I was a
bit concerned when he reached for his gun and his hand was shaking. I mean, I was
thinking, ‘Oh great. We have somebody who doesn’t even know how to handle a
weapon.’ ” Borello explained he did not move because “in a situation like that, the less
you say and move around the better.” After taking the cameras, S.L.S. and his
accomplice led police on a vehicle pursuit that ultimately resulted in a collision. After a
brief foot pursuit, the police took S.L.S. and his accomplice into custody, and recovered
camera equipment from the vehicle.
II. DISCUSSION
A. Sufficiency of the Evidence for Robbery
S.L.S. contends the evidence was insufficient to support a finding of robbery
because the prosecution failed to show the victim—identified in the wardship petition as
“Mike’s Cameras”—felt fear. The Attorney General argues S.L.S. forfeited his claim
because he failed to object to any variance between the petition and the proof at the trial
court. The Attorney General further argues the claim fails on the merits because the
evidence was sufficient to support a finding that the employees were agents of Mike’s
Cameras and therefore “putative victims of the robbery.”
1. Legal Principles
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
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force or fear.” (§ 211.) “The fear mentioned in Section 211 may be either: 1. The fear
of an unlawful injury to the person or property of the person robbed, or of any relative of
his or member of his family; or, 2. The fear of an immediate and unlawful injury to the
person or property of anyone in the company of the person robbed at the time of the
robbery.” (§ 212.) “It is not necessary that there be direct proof of fear; fear may be
inferred from the circumstances. . . .” (People v. Morehead (2011) 191 Cal.App.4th 765,
775.) Likewise, fear may be inferred despite contradictory testimony from the robbery
victim. (Ibid.)
The rules of pleading in criminal cases are set forth in part 2, title 5, chapter 2 of
the Penal Code. (§ 948 et seq.) Section 952 provides in part, “In charging an offense,
each count shall contain, and shall be sufficient if it contains in substance, a statement
that the accused has committed some public offense therein specified.” (§ 952.) Such
statement “may be in the words of the enactment describing the offense or declaring the
matter to be a public offense, or in any words sufficient to give the accused notice of the
offense” and the statement may be made in “ordinary and concise language without any
technical averments or any allegations of matter not essential to be proved.” (Ibid.)
“When an offense involves the commission of, or an attempt to commit a private injury,
and is described with sufficient certainty in other respects to identify the act, an
erroneous allegation as to the person injured, or intended to be injured, or of the place
where the offense was committed, or of the property involved in its commission, is not
material.” (§ 956, italics added.) “No accusatory pleading is insufficient, nor can the
trial, judgment, or other proceeding thereon be affected by reason of any defect or
imperfection in matter of form which does not prejudice a substantial right of the
defendant upon the merits.” (§ 960.)
A “defendant has forfeited [their] right to object to an alleged variance between
the pleading and the proof by failing to raise the objection in the trial court.” (People v.
Maury (2003) 30 Cal. 4th 342, 427 (Maury).) Further, “[a] defendant may not be
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permitted to submit to a trial on the merits without objection, taking his chances of
obtaining a favorable verdict, and reserve, in the event of an adverse judgment, any
objection which he may have to mere irregularities in the form of indictment or pleading,
for an attack in the appellate court for the first time. [Citations.]” (People v. Meraviglia
(1925) 73 Cal.App. 402, 407 (Meraviglia).)
In reviewing a challenge to the sufficiency of the evidence in the sustaining of an
allegation in a juvenile case, “we review the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v.
Gonzales (2011) 51 Cal.4th 894, 941.) However, we cannot “venture beyond the
evidence presented at trial, and may consider only those inferences that are reasonably
supported by the record.” (People v. Ware (2022) 14 Cal.5th 151, 167.) Reasonable
inferences “may not be based on suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work.” (People v. Morris (1988) 46 Cal.3d 1,
21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict. [Citations.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. Forfeiture
S.L.S. argues that by identifying the purported victim as “Mike’s Cameras”
instead of Krebs or Borello the prosecution made a “charging decision” and “placed upon
themselves the burden of proving beyond a reasonable doubt that Mike’s Cameras felt
fear.” The Attorney General contends this argument constitutes a claim of variance
between pleading and proof and that S.L.S. forfeited the claim by failing to object below.
We agree with the Attorney General on both points.
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In People v. Collins (1960) 54 Cal.2d 57, the defendants were charged with
forcible rape under former section 261, subdivision 3. (Id. at p. 60.) In a bench trial, the
court found them guilty of statutory rape under subdivision 1. On appeal, the defendants
claimed they were improperly convicted of statutory rape despite sufficient evidence of
that offense because they were charged instead with forcible rape. (Id. at p. 58.) The
court held that when the information charges the accused with one crime, but the proof
supports a charge of an offense in another subdivision of that crime, it constitutes a
“variance” between pleading and proof. (Id. at p. 59.) To challenge a variance on
appeal, a defendant must object below to “irregularities in the form of indictment or
pleading” or the claim is forfeited. (Meraviglia, supra, 73 Cal.App. at p. 407; Maury,
supra, 30 Cal.4th at p. 427.)
S.L.S. nonetheless characterizes the claim as insufficiency of evidence. He
contends the prosecution failed to prove that the named victim, Mike’s Cameras, felt fear
since the store is inanimate. This implies the prosecution should have identified Krebs or
Borello as the “actual” victims of the robbery. S.L.S. does not dispute that had Krebs or
Borello been identified as victims in the petition, the evidence would have been sufficient
to show they felt fear. The thrust of the argument is that the petition simply misidentified
the victim. Because S.L.S. failed to object to this variance below, he has forfeited the
claim. (Maury, supra, 30 Cal.4th at p. 427.)
3. S.L.S. Fails to Show He Was Prejudiced by the Variance
But for the reasons below, even if we did not find it forfeited, the claim fails on
the merits. The Attorney General contends designating the wrong victim is immaterial
here. We agree. “A variance is not regarded as material unless it is of such a substantive
character as to mislead the accused in preparing his defense, or is likely to place him in
second jeopardy for the same offense.” (People v. Williams (1945) 27 Cal. 2d 220, 226.)
In People v. Olf (1961) 195 Cal.App.2d 97, the court applied section 956 in holding that
the erroneous designation of a victim or the omission of the name of the victim from a
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charging document is immaterial. Likewise, in People v. Foster (1926) 198 Cal. 112, the
court held that “[t]he person injured is not material if the crime is described in the
information with sufficient certainty as to identify the act.” (Id. at p. 122.)
This rule applies equally in juvenile court proceedings. In In re Michael D. (2002)
100 Cal.App.4th 115, the juvenile claimed that the evidence presented by the prosecution
was insufficient to prove an allegation of the petition, which alleged the juvenile pointed
a replica firearm at a specific person. (Id. at p. 128.) The Court of Appeal held that “the
variance between the petition and the evidence is inconsequential” because “the minor, in
effect, concedes he had adequate notice of the charges against him.” (Ibid.) Further,
“[t]he charging document provides notice to the accused. As long as it serves that
purpose, it is adequate.” (Id. at p. 127.)
Here, S.L.S. contends that he “relied on the People’s charging decision in the
petition to provide adequate notice.” But S.L.S. provides no evidence or citation to the
record showing he relied on the specific identification of the victim to his detriment. The
record shows S.L.S. had the opportunity to, and did, cross-examine both store employees
as if they were victims. At no point before or during trial did S.L.S. contend that the
identification of Mike’s Cameras as the victim harmed his defense. We conclude that the
identification of Mike’s Cameras as the victim in the wardship petition provided
sufficient notice of the offenses charged and that S.L.S. was not misled in preparing his
defense.
S.L.S.’s reliance on People v. Miller (1977) 18 Cal.3d 873 (Miller) (overruled on
another ground by People v. King (1993) 5 Cal.4th 59) is misplaced. In Miller, the
defendant and an accomplice robbed a jewelry store. (Id. at p. 878.) In the course of the
robbery, while a salesperson, John Keating, displayed watches to Miller’s accomplice,
Miller shot the security guard, Charles Burk. (Ibid.) The information alleged Miller by
means of force or fear took personal property “from the person, possession and
immediate presence of Jon [sic] Keating, and in the course of the robbery, with the intent
7
to inflict great bodily injury upon Charles Burk, did inflict great bodily injury upon
Charles Burk.” (Id. at p. 879.) Miller challenged the augmented punishment imposed
under former section 213 because “there is no evidence or finding that he intentionally
inflicted great bodily injury on the victim of the robbery.” (Id. at p. 878.) Miller argued
that the victim named in the information—John Keating—suffered no bodily injury, and
that the bodily harm suffered by Charles Burk, who was not named as the robbery victim,
could not be substituted in lieu of any injury to Keating. (Id. at p. 880.)
The Supreme Court agreed with Miller on this point, noting that former “[s]ection
213 provides in pertinent part that if a defendant ‘inflicted great bodily injury on the
victim of the robbery, such fact shall be charged in the indictment or information and if
found to be true’ the defendant shall suffer the augmented penalty.” (Miller, supra,
18 Cal.3d at p. 881.) Thus a “necessary element is great bodily injury to a victim of a
robbery. It is not enough that Burk falls within that class of persons who may have been
alleged to be a victim; the trier of fact must have found him to be a victim on pleadings
and instructions that properly frame the issue.” (Id. at p. 882.) The information did not
identify Burk as a victim of the robbery, and even though Burk could have been
designated as a victim, he also could have been a “complete stranger who was
unintentionally and accidentally injured” during the course of the robbery. (Id. at p. 881.)
“As the information charged only injury to Burk without alleging his status, we cannot
conclude that the jury found him to be a victim of the robbery. . . . Accordingly, the
finding of great bodily injury to Burk cannot sustain the imposition of the increased
punishment for robbery.” (Id. at p. 882.)
The logic of Miller does not support S.L.S.’s claim. First, the text of former
section 213 created an increased punishment for great bodily injury inflicted on “the
victim of the robbery,” not “any” victim of the robbery. (Miller, supra, 18 Cal.3d at
p. 880, fn. 3, italics added.) The text thereby assumed a single robbery victim, and the
defendant had to inflict great bodily injury on that same victim to trigger the increased
8
punishment. Furthermore, the text expressly required that this condition be pleaded in
the charging document. Thus, regardless of the victim’s identity as alleged in the
charging document, the charging document had to plead—and a jury had to find—that
the injured person was the victim of the robbery for the increased punishment to apply.
(Id. at p. 882.) But because the information in Miller only named Keating as the victim
of the robbery, the jury never found Burk was a victim of the robbery; the jury found only
that Keating was a victim, and Keating had suffered no injuries. Therefore, the increased
punishment could not be applied based on injuries suffered solely by Burk. In short, the
Supreme Court struck the finding of great bodily injury not simply because the pleading
identified Keating instead of Burk as the victim of the robbery, but because the jury never
found that Burk was also a victim of the robbery.
Unlike former section 213, here the text of section 211 contains no language
requiring a finding that injuries were suffered by the same person who was found to be
the victim of the robbery. Nor does section 211 set forth any specific pleading
requirements. As set forth above, the wardship petition in this case is governed by the
generally applicable rules of pleading set forth in sections 948 et. seq. Under those rules,
the petition was not required to name a specific victim of the robbery, and nothing in
section 211 required the petition to allege any other conditions applied to the same
victim. Miller is therefore inapposite.
For the reasons above, we conclude this claim is without merit.
B. Grand Theft is a Lesser Included Offense of Robbery
S.L.S. argues that the trial court could not have found him to have committed both
robbery and grand theft because theft is a lesser included offense of robbery. The
Attorney General concedes, and we find the concession well-taken.
We review de novo the claim that theft is a lesser included offense of robbery
because the question is a matter of law. (People v. Johnson (2007) 150 Cal.App.4th
1467, 1474.)
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“There are two tests to determine if an offense is a lesser included offense of
another: ‘(1) the greater statutory offense cannot be committed without committing the
lesser because all of the elements of the lesser offense are included in the elements of the
greater; or (2) . . . the charging allegations of the accusatory pleading include language
describing it in such a way that if committed in that manner the lesser offense must
necessarily be committed. [Citations.]’ ” (People v. Moses (1996) 43 Cal.App.4th 462,
466.) Here we apply the former test.
All elements of theft are included in robbery, except that robbery requires the
victim to be subject to force or fear. (People v. Burns (2009) 172 Cal.App.4th 1251,
1256.) Since robbery is an aggravated manner of theft and includes the elements of theft,
“it is well settled that theft is a necessarily included offense of robbery,” whether the theft
is charged as grand theft or petty theft. (People v. Ortega (1998) 19 Cal.4th 686, 694-
697, overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224.) Therefore,
when a defendant is found culpable for both theft and robbery, the theft conviction may
be reversed if both convictions were predicated on the same conduct. (Ibid.)
Here, count 1 alleged that the robbery was based on the taking of the “personal
property” of Mike’s Cameras and count 2 stated that the grand theft allegation was based
on the taking of “cameras and associated equipment.” The evidence supporting both
allegations involved the same property taken during the same course of conduct.
Accordingly, grand theft is a lesser included offense of robbery, and the sustained
allegation must be reversed.
C. The Probation Condition Authorizing the Probation Officer to Place S.L.S.
Out of the Home to “Meet Family Crises” Is Unconstitutionally Vague
S.L.S. argues that the probation condition which authorizes the probation officer to
remove him from his home to “meet family crises” is unconstitutionally vague. The
Attorney General concedes that the condition lacks specificity. We accept the
concession.
10
We generally review the court’s imposition of a probation condition for an abuse
of discretion. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we apply
the de novo standard of review for constitutional challenges to probation conditions. (Id.
at p. 1143.) We may review a challenge to the constitutionality of a probation condition
absent any objection below if the issue may be resolved as a matter of law without
reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889
(Sheena K.).)
A trial court is given broad discretion in setting forth probation conditions by
balancing the interests of both the defendant and public welfare. (People v. Hall (2017) 2
Cal.5th 494, 502 (Hall).) “However, a probation condition may not be enforced if it
‘forbids or requires the doing of an act in terms so vague’ that people of ‘common
intelligence must necessarily guess at its meaning and differ as to its application.’ ”
(Ibid.; accord, Sheena K., supra, 40 Cal.4th at p. 890.) To withstand a “void-for-
vagueness” challenge, “a probation condition must be sufficiently definite to inform the
probationer what conduct is required or prohibited, and to enable the court to determine
whether the probationer has violated the condition.” (Hall, supra, at p. 500.)
The record shows S.L.S. had been subject to detrimental conditions at home,
including lack of supervision and physical and emotional abuse. The juvenile court
authorized the probation officer to remove S.L.S. from his home for up to 30 days to
“meet family crises.” However, the juvenile court did not define what would constitute a
“family crisis” sufficient to warrant removing S.L.S. from the home. As S.L.S. notes,
“crisis” is subject to numerous interpretations.
After a careful review of the record, we are left to speculate what the juvenile
court meant by this probation condition. We agree with the parties that the probation
condition is not “sufficiently definite” and could not properly inform S.L.S. what
conditions are required or prohibited. Nor could a court determine with a sufficient
degree of certainty whether the probation condition was violated. Accordingly, we will
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remand to the juvenile court to clarify the term “meet family crises” and to identify the
conditions that would permit the probation officer to remove S.L.S. from his home.
III. DISPOSITION
The May 18, 2022 order sustaining the grand theft allegation is reversed. The
matter is remanded to the juvenile court to modify or delete probation condition
Number 13 consistent with this opinion.
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_______________________________
Greenwood, P. J.
WE CONCUR:
_______________________________
Grover, J.
_______________________________
Lie, J.
H050182
People v. S.L.S.